VI. TRIAL

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Rule 26.3: Order of Expert Testimony.

In a trial involving conflicting expert testimony and with the consent of all parties, the court may reorder the ordinary proof process to increase the likelihood that jurors will be able to comprehend and evaluate expert testimony.

Advisory Commission Comment.

This rule is designed to assist jurors in understanding conflicting expert testimony by providing judges and lawyers with considerable flexibility in the scheduling and mode of that testimony. There are many possible methods that can be used pursuant to this rule. On rare occasions, it may be helpful if expert testimony on the same subject be given in the same block of time rather than separated by days or weeks and given during each party’s proof process. For example, in a criminal homicide case where both sides will present expert testimony on causation, jurors may benefit if the prosecution’s causation experts testify, followed immediately by the defendant’s causation experts. This procedure may give the jurors a better way of resolving the critical issue of causation. Because of the tactical, financial, scheduling, and procedural issues raised by this new procedure, it can only be utilized with the consent of the court and all parties.

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